President Obama says the 1996 Defense of Marriage Act is unconstitutional, and he wants Congress to repeal it. But until a court strikes the law down, he says, he will continue to enforce it, denying federal benefits to same-sex couples.

That enforcement policy, however, is undergoing changes.

Earlier this month, the Obama administration said it would allow financially stressed gay and lesbian couples to file jointly for bankruptcy. The government had previously required individual filings under the 1996 law.

Administration officials have also advised immigration officers to reconsider their priorities for deportation, an order that could allow some same-sex spouses to remain in the United States. And the Internal Revenue Service is allowing same-sex partners in California and other states to claim community property for tax purposes.

On the other hand, the administration is still denying insurance coverage for the wife of Karen Golinski, a federal court employee in San Francisco, despite agreeing with her that the grounds for denial are legally baseless. And same-sex couples still can't file joint tax returns or collect Social Security survivors' payments, among hundreds of other marital benefits.

Law's future uncertain

Overall, the administration's policy is in flux, a reflection of the uncertain future of the law itself in both Congress and the courts.

"We are seeing a not wholly consistent approach," said Jon Davidson, legal director of the gay rights group Lambda Legal, which represents Golinski in federal court. "The actions taken by the administration are evolving, just like the president's position on marriage equality."

Jane Schacter, a Stanford law professor, said the line between defending and enforcing a law like the Defense of Marriage Act isn't always clear. Typically, she said, administration officials "will take opportunities they find suitable to limit enforcement of a statute they judge to be constitutionally flawed."

House Speaker John Boehner, R-Ohio, has criticized Obama for disavowing the 1996 law. He did not respond to a request for comment.

In a court filing last month, attorney Paul Clement, appointed by a Boehner-led committee to defend the law in the nation's courts, accused Obama of violating his constitutional duty by withdrawing support from a statute that had been approved by Congress. Justice Department officials say other presidents have done the same thing at least nine times in the last three decades.

Obama has long opposed the Defense of Marriage Act. He called for its repeal during his 2008 presidential campaign and amplified his position last week by endorsing a bill by Sen. Dianne Feinstein, D-Calif., that would grant federal benefits to all couples legally married in their states.

Still, his Justice Department initially defended DOMA in court against a series of legal challenges. The department withdrew after Obama announced in February that he considered the law to be an unconstitutional act of discrimination based on sexual orientation.

House Republicans then hired Clement, a former U.S. solicitor general, to take over the defense. But after a federal bankruptcy court in Los Angeles declared the law unconstitutional last month, Boehner's office said there was no need to spend time and money on an appeal, since DOMA's fate was unlikely to be decided in a bankruptcy case.

With similar challenges pending in other bankruptcy courts and no one stepping forward to defend the law, the Justice Department announced it would no longer oppose joint filings.

Impact on immigration

In immigration cases, the Obama administration and its predecessors have invoked the Defense of Marriage Act in refusing to allow gays and lesbians to sponsor their spouses as legal immigrants. The result was to deny entry to spouses or order the deportation of those who were here illegally.

But immigration law has always given the government leeway in deciding whom to deport. In a June 17 memo, the director of U.S. Immigration and Customs Enforcement said agents should give first priority to deporting dangerous criminals and should consider such factors as an immigrant's family and community ties, and marriage to a U.S. citizen, in deciding whether to seek removal.

Twelve days later, the Obama administration ended deportation proceedings in New Jersey against a member of a gay married couple - the first known case in which U.S. officials have allowed a same-sex spouse to apply for legal immigrant status.

"This historic decision will lay the foundation for administrative closure of other deportation cases involving gay and lesbian couples," said the couple's lawyer, Lavi Soloway.

Soloway also represents a gay Riverside County couple, Alex Bensimol and Doug Gentry, in another leading deportation case.

Immigration officials had sought to deport Bensimol, a Venezuelan whose 1999 U.S. visa had expired. But on July 13, a Justice Department immigration judge in San Francisco suspended deportation proceedings for two years and gave the government 60 days to decide whether to pursue the case. The judge didn't say whether she was relying on the June 17 memo.

Immigration enforcement varies from district to district, however, and Soloway said the administration, despite its apparent flexibility, hasn't adopted a clear policy. An organization Soloway founded, Stop the Deportations, has called for a moratorium on removals of same-sex spouses until the constitutionality of the law is resolved.

The Obama administration has also reduced the law's financial burden on gays and lesbians. In May 2010, the IRS reversed a 4-year-old decision of President George W. Bush's administration and said it would allow same-sex partners to claim half of each other's income as community property.

Community property

The decision applied to three states - California, Washington and Nevada - whose laws recognize both domestic partners and community property, in which assets acquired during a relationship are shared equally.

Davidson, of Lambda Legal, said the IRS has specified that its policy also applies to the 18,000 same-sex couples who married in California before Proposition 8 outlawed such marriages in November 2008. He said the policy doesn't eliminate their tax disadvantages but can save thousands of dollars for couples with wide income disparities.

Despite those exceptions, Justice Department spokeswoman Tracy Schmaler said the Obama administration continues to enforce the law, respecting "the actions of the prior Congress that enacted DOMA, and (recognizing) the judiciary as the final arbiter of the constitutional claims."

Davidson said the policy is frustrating but understandable. If Obama decided not to enforce the marriage law, he said, the next Republican president might refuse to enforce the federal health care law or financial regulation.

"As much as I would like them to stop enforcing DOMA altogether, I think they need to be worried about the precedent," Davidson said.